No. 13 - Privilege - Raising matters of privilege and the right of reply
What is “privilege”?
The
term “parliamentary privilege” refers to two aspects of the law relating to
Parliament:
- the
privileges or immunities of the
Houses of the Parliament; and
- the powers of the Houses to protect the
integrity of their processes, including the power to punish contempts.
The
chief immunity from the ordinary law is the freedom of parliamentary debates
and proceedings from question and impeachment in the courts. For example, members of Parliament cannot be
sued or prosecuted for anything they say in debates; witnesses before
parliamentary committees cannot be sued or prosecuted for the evidence they
give or the fact that they have given it.
The
principal powers of the Houses are the power to compel the attendance of
witnesses, the giving of evidence and the production of documents and the power
to adjudge and punish contempts. A contempt is a breach of the immunities
of a House or any action which improperly obstructs a House or its members in
the performance of their duties.
For
more information, see Senate Brief No. 11—Parliamentary Privilege;
Odgers’ Australian Senate Practice, 11th
edition, Chapter 2.
Why are these powers and immunities
necessary?
These
powers and immunities, or privileges, are fundamental to the operation of free
institutions. They protect the right and
ability of the Houses of the Parliament, and their committees, to carry out
their functions of inquiring, debating and legislating without interference and
to deal effectively with any attempted interference.
What is the legal framework?
Section
49 of the Constitution declared the powers,
privileges and immunities of the Commonwealth Parliament to be the same as
those of the House of Commons of the United Kingdom at the time the Commonwealth was established. The Constitution also provided that the
Commonwealth Parliament could declare its own privileges if it chose to do so.
In
1987, a significant declaration of the Commonwealth Parliament’s privileges was
made in the form of the Parliamentary Privileges Act 1987. This Act declares some important privileges,
abolishes others and defines the penalties that a House may impose for
contempt. The definition of “proceedings
in Parliament” in section 16 overcomes some lack of clarity
in the activities covered by that expression.
To
supplement the Act, the Senate agreed to a series of resolutions in February 1988 (the “Privilege Resolutions”)
to establish certain procedures for the Senate and its committees, such as
procedures to protect the rights of witnesses, and to set out how the Senate,
through its Committee of Privileges, would investigate possible contempts. The latter is particularly important in
guaranteeing procedural fairness for all participants.
The
Senate Committee of Privileges, through its many inquiries into possible
contempts, has established a body of “case law” which assists the Senate to
administer and interpret its privileges.
The Committee’s inquiries and findings, to December 2005, are summarised
in its 125th report. Other reports may also be found on the Senate website.
What is a matter of privilege?
A
matter of privilege is any action which may constitute a contempt of the Senate
and which the Senate may refer to its Committee of Privileges for
investigation. The potential or actual
improper interference caused by such conduct with the ability of a House, its
committees or its members to perform their functions is a key factor in
adjudging whether a contempt has been committed.
The
following are examples of possible contempts:
- a witness
gives evidence to a committee that he or she knows to be false;
- a
government agency punishes one of its officers for giving evidence to a
committee that goes against the official agency line;
- a
potential witness is given an inducement not to give evidence to a
committee;
- a key
witness is uncooperative at a committee hearing and refuses to provide
documents sought by the committee;
- a person
threatens legal action against a senator to prevent him or her raising a
particular issue in the Senate.
- a member
of a committee gives a copy of the committee’s draft report to a
journalist; the journalist writes an article about the implications of the
committee’s proposed recommendations and the article is published before
the report is tabled;
- a member
of a committee gives a copy of a confidential submission received by the
committee to a Minister’s office;
A
non-exhaustive list of matters that may constitute contempts is contained in Privilege Resolution 6.
Raising matters of privilege
Standing order
81
sets out the procedure for raising matters of privilege in the Senate for
investigation. The first step is for the
senator who intends to raise the matter of privilege to write to the President
of the Senate describing the matter.
The
President is required to consider the matter against criteria which are also
set out in the Privilege Resolutions (Resolution 4). In determining, as soon as practicable,
whether to give precedence to a notice of motion to refer the matter to the
Committee of Privileges, the President must consider:
- the
principle that the Senate’s power to adjudge and deal with contempts
should be used only where it is necessary to provide reasonable protection
for the Senate and its committees and for senators against improper acts
tending substantially to obstruct them in the performance of their
functions, and should not be used in respect of matters which appear to be
of a trivial nature or unworthy of the attention of the Senate; and
- the
existence of any remedy other than that power for any act which may be
held to be a contempt.
The
President’s decision is conveyed to the senator and, in most cases, to the
Senate. While the matter is under
consideration by the President the senator concerned must not take any other
action in relation to the matter or refer to it in the Senate.
In
most cases, the President decides that the matter should be given
precedence. After this decision is
notified to the Senate, the senator concerned gives a notice of motion to refer
the matter to the Committee of Privileges for inquiry and report. The notice appears at the top of the Notice Paper on the relevant day, under
the heading “Matter of Privilege”. It is
usually dealt with as formal business (see Brief Guide No. 2—Notices of Motion) but if
debate is required, a matter of privilege is dealt with ahead of all other
categories of business (see Brief Guide No. 8—Categories of Business).
If
the President determines that a matter of privilege should not be given
precedence, it is open to the senator concerned to take any action that is in
accordance with the rules of the Senate; for example, referring to the matter
in debate or giving notice of a motion seeking specified action, including a
reference to the Committee of Privileges.
It is then up to a majority of the Senate to decide if that action
should be taken.
While
only a senator may raise a matter of privilege (other than a right of reply or
adverse reflection in committee evidence—see below), aggrieved persons may ask
senators or committees to raise matters on their behalf.
The Right of Reply
In
1988, the Senate is believed to have been the first legislature to grant people
a right of reply to adverse references to them in proceedings. Since then, most Australian legislatures and
others throughout the Commonwealth have adopted similar procedures.
The
right of reply consists of an opportunity for a person who claims to have been
adversely affected through being named or otherwise identified in Senate
proceedings to have a response incorporated in the parliamentary record. The person makes a submission to the
President of the Senate requesting publication of a response. If the submission is not trivial or
frivolous, the President refers it to the Committee of Privileges to ensure
that the suggested response is not offensive and does not itself contain
material that would unreasonably adversely affect or injure another person or
invade their privacy or add to or aggravate any such adverse effect, injury or
invasion of privacy. The Committee does
not inquire into the truth or merits of the statement in the Senate or the
response, but if it is satisfied that a response should be published, it
recommends that course of action to the Senate.
All such recommendations have been accepted and the responses published
in the Committee’s report and incorporated in Hansard.
The
procedure, which is set out in Resolution 5, does not apply to Senate
committees which are governed by other procedures for dealing with evidence
that adversely reflects on another person.
These procedures, which are contained in paragraphs (11) to (13) of Resolution 1,
also ensure procedural fairness.
The responsibilities of free speech
The
Senate also agreed to a resolution in 1988 that enjoined senators to exercise
their right of freedom of speech responsibly, taking into account the
potentially damaging effect of allegations, the limited opportunity for
affected persons to reply, the need to observe the rights of others and to
ensure that any adverse reflections were soundly based. This exhortation is contained in Resolution 9.
Need assistance?
Advice
on any of the matters covered by this Brief Guide is available from the Clerk
of the Senate on extension 3350.
Specific advice on the operations of the Committee of Privileges is
available from the Secretary on extension 3360.
June
2008
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